Obama, in fact, had lamented his inability to enact provisions of the legislation on his own just a year earlier, according to the McClatchy News Service. “Sometimes when I talk to immigration advocates, they wish I could just bypass Congress and change the law myself,” Obama said at a Texas event in May 2011. “But that’s not how a democracy works.”
Maybe so, but Obama’s White House also bypassed Congress in granting waivers to states exempting them from the onerous requirements of the No Child Left Behind Act. By this summer, more than half the states had secured waivers after promising to follow a set of federal conditions aimed at improving student performance. The executive branch issued the waivers even as Congress failed to reauthorize the law.
That didn’t keep Republicans from criticizing the move. Rep. John Kline of Minnesota, who chairs the House Education and the Workforce Committee, contended that the administration was using the waivers “in exchange for states adopting the policies he wants them to have.”
The Obama administration also grew impatient after Congress failed to pass a bill in 2009 that would limit greenhouse-gas emissions. His Environmental Protection Agency then promulgated rules that slapped severe limits on coal-fired power plants, raising the ire of Republicans and energy-industry executives, who warned that the rules would sound a death knell for coal in the United States. It was another example, they said, of Obama accomplishing through fiat what he could not through the legislative process.
ROMNEY’S “DAY ONE”
For his part, Romney wants to follow the same path in regard to another unpopular law: the Democratic health care overhaul known as “Obamacare.” Repeatedly, the former governor has said he will issue waivers exempting states from the law’s requirements on “day one.” That and other orders Romney plans to issue show a view of executive power that is consistent with Bush’s and Obama’s.
With the legality of the health care law no longer in doubt, Romney wants to issue waivers that “return the maximum possible authority to the states” to develop their own regimes independent of the federal program. But Timothy Jost, a health care expert at the Washington and Lee University School of Law, says that no authority exists for a Romney White House to allow states to simply “opt out.”
“There is no such thing,” Jost said.
Instead, “innovation waivers” in the law allow a state that has established its own health care program to use it in favor of the federal one. But, Jost said, those waivers don’t kick in until 2017, after Romney’s four-year term would have ended. Moreover, any state seeking such an exemption would have to show that it can cover as many of its residents as the federal law does.
Other health care law experts, however, believe that Romney could use executive power to gum up the works one way or another—perhaps buying time for a full repeal. “I think he could do a lot to slow it down,” said James Capretta, a fellow with the Ethics and Public Policy Center in Washington.
Specifically, a Romney White House could exploit a loophole in the law that has left unfunded federal insurance exchanges that would be set up in states that refuse to establish their own. “If Governor Romney were to win, he’s not going to ask for that [money],” Capretta said, adding, “Nobody gets arrested if the law doesn’t get implemented because no administrative structure is set up in time.”
Even so, the only feasible way to block full-scale implementation of the law is through repeal or amendment. Until that happens, Romney’s “obligation as president is to execute the laws,” Jost said.
Romney has also vowed, on his first day, to get tough with China by issuing an executive order directing the Treasury Department to declare the Asian superpower a “currency manipulator” under federal law and, in turn, ordering the Commerce Department to place tariffs on Chinese imports if Beijing fails to move to float the yuan. That plan also has some problems, according to Scott Lincicome, an expert in international trade with the law firm White & Case.
Treasury, in consultation with the International Monetary Fund, releases a report on currency manipulation every six months. A day-one order from Romney would force the department to put out a report “at a completely inappropriate time,” Lincicome said, and result in “a really serious diplomatic problem” because the declaration would appear premeditated and not the result of a legitimate fact-finding. “It would basically make a sham of the process,” he said, and would undermine the new administration’s credibility even as it attempts to assert itself on the world stage. (The wisdom of launching a trade war with China is another matter.)
Romney has broadly said he wants to revamp the federal regulatory scheme. He has promised to issue an executive order that would prohibit the executive branch from issuing a new regulation until it performs a cost-benefit analysis and identifies another regulation equal in “cost” to eliminate, so as not to “add” to the overall regulatory burden. Moreover, Romney wants to require that major regulatory changes, such as new mileage standards for automobiles or restrictions on coal-fired power plants, be contingent on congressional approval—making the chances of enacting big changes in the current legislative environment shaky at best.
The problem, said Richard Murphy, an administrative law expert at the Texas Tech University School of Law, is that Romney’s plan is probably illegal because it would eliminate all rule-making discretion from the executive branch. It would also be difficult to apply. “What’s it worth to have clean air over the Grand Canyon?” Murphy asked rhetorically.
As part of Romney’s plan to overhaul the regulatory process, he would seek to allow states to tap oil and gas resources on federal land, while speeding up the permitting process for private land. State permitting processes would be deemed to be an acceptable substitute for Interior Department review.
For a President Romney, the temptation to use executive power in place of congressional inaction is likely to be as attractive as it has been to Obama. No matter which candidate wins the election, he’ll be faced with a divided Congress and a Senate filibuster at the ready. So the same complaints that arose under Bush and returned under Obama would likely resurface under Romney.
The modern presidency seems to grow inexorably larger over time—and, so far, even topsy-turvy election results haven’t deterred its expansion. You could argue that Bush administration policies helped spark the Democratic wave of 2006 and Obama’s victory in 2008, just as you could argue that Obama’s views on federal power helped to prompt the Republican push-back of 2010. Romney plans to run the government like he would a business, with himself as chief executive officer. Bush had much the same intention—and his administration pushed executive power to the limit. That’s the thing about executives—and presidents, for that matter: They hate being told what they can’t do.
This story appeared in the print edition of National Journal under the headline "A President’s Power."